Terms for Years-Attendant Terms. 513 sonal estate. The trusts of personal estate which it is material particularly to notice, are those of terms for years. The terms for years which have been the subject of previous notice, are those which are separated from the inheritance for the benefit of some particular persons, or for some particular purposes. Such terms. are called terms in gross (a), and the persons entitled to the beneficial interest in such terms, have a right in equity, corresponding with the right of the cestui que trust of a freehold interest, to call upon the trustees to pay over to them the rents and profits, and to assign the legal estate in the term to them, unless it be necessary that it should, for the general purposes of the trust, remain outstanding (b). The cestui que trust of a term in gross has the same power of aliening and devising it, as has a person entitled to a legal term, with this difference in favor of a trust term, that it may, unlike a legal term, be conveyed as well as devised so as to give successive interests (c) to successive takers, provided the rule as to perpetuities be not transgressed (d). Where what is equivalent to an estate tail in a trust of a term, or other personal estate, is given to the first or any subsequent taker, it vests in him absolutely without more, just as in the case of a direct bequest of personal estate (e). A trust term, though settled on one and his heirs, goes to his executors (f). The Statute of Frauds (29 Car. II. c. 3, § 10), which made the trust of an inheritance assets at law, did not affect trusts of terms, so that they are equitable, not legal assets (g); the attendant terms to be presently mentioned, being annexed to the inheritance, are real assets (h). *A possibility of a trust, it may be observed, might be assigned in equity, though a grant of a future possibility (till lately) (i), was void at law (k). Attendant Terms. [*514] It remains shortly to notice Attendant terms, though the passing of the statute 8 & 9 Vict. c. 112 (l) will supersede much of the learning on this subject. Attendant terms were the creatures of the doctrine as to resulting and constructive trusts. They are nothing more than long terms for years, created for purposes which have been determined or satisfied, as the securing of money lent, or the raising of portions for children, in which event they are held by the Court of Chancery constructively, to be attendant on the inheritance (m). Lord Hardwicke (a) Long terms, as for 300 and even 1000 years, had been granted so early as Edw. III., 2 Bla. Comm. 342; though at common law, it has been said, a lease was not good for more than forty years, Floyd v. Cary, 2 Freem. 220. In the time of Elizabeth, though much in use, (Reg. Lib. B. 1582, &c.) they were looked upon with suspicion, as tending to defraud the Crown; see Tothill, p. 187, 39 & 40 Eliz., where relief was refused on that ground alone. (b) Cruise, Trust, c. iii. § 1, vol. i. 417. (c) Duke of Norfolk v. Howard, 3 Ch. Ca. 1; 1 Vernon, 164; Massenberg v. Ash, 2 Vern. 237. (d) V. supra, p. 472. (e) V. Howard v. Duke of Norfolk, 2 Freeman, 74, et v. 75; Foley v. Burnel, 1 Bro. 274. 284; Case v. Lord Errol, 14 Ves. 478; Tollemache v. Coventry, 2 Cl. & Finnell. 626, &c. (f) 1 Vernon, 164. (g) 2 Vernon, 248. (h) Cruise, i. p. 426; see as to this distinction, supra, p. 421. (i) V. supra, p. 291; Stat. 8 & 9 Vict. c. 106. (k) Lord K. Coventry, 1 Rep. Ch. 16. (1) V. supra, p. 292, 3. (m) See Hayes' Introd. i. 106; the court 514 Terms attendant on the Inheritance. gives the following description of the nature and origin of terms of this description (a) : "The attendance of terms for years upon the inheritance is the creation of a Court of Equity, invented partly to protect real property, and partly to keep it in the right channel. In order to it, this court framed the distinction between such attendant terms and terms in gross, notwithstanding that, in the consideration of the common law, they are both the same, and equally keep out the owner of the fee, so long as they subsist. But as equity always considers who has the right in the land, and on that ground makes one man a trustee for another; and as the common law allows the possession of the tenant for years to be the possession of the owner of the freehold, the court said, where the tenant for years is but a trustee for the owner of the inheritance, he shall not keep out his cestui que trust, nor, pari ratione, obstruct him in doing any acts of ownership, or in making any assurances of his estate; and therefore, in equity, such a term for years shall yield, ply, and be moulded, according to the uses, estates, or charges which the owner of the inheritance declares or carves out of the fee; thus the dominion of real property was kept entire. Proceeding upon these principles wherever a term for years has been vested in a stranger, in trust for the owner of the inheritance, whether by trust expressly declared, or by construction or judgment of this court, which is called a trust by operation of law; this court said that the trust or beneficial interest of such a *term should follow or be affected by all such conveyances, as[*515] surances, or charges as the owner creates of the inheritance." "Though the law says," added his Lordship, "that the term and the fee being in different persons, they are separate distinct estates, and the one not merged in the other, yet the beneficial and profitable interest of both being in the same person, equity will unite them for the sake of keeping the property entire. Therefore, if the owner of the inheritance levy a fine sur conuzance de droit, or suffer a common recovery to uses, the trust of the term shall follow, and be governed by those uses, although a term for years is not the subject of a fine sur conuzance de droit, much less of a common recovery; nor would equity allow the trust of a term in gross to be settled with such limitations. This doctrine is always allowed to have its full effect as between the representatives, that is, the heir, either in fee simple or fee tail, of the owner of the inheritance, and the executor, and all persons claiming as volunteers under him, though certain distinctions have been admitted as to creditors (b); and, in general, the rule has been the same, whether the trust of the term be created by express declaration, or arise by construction and judgment of this court. But although, in all these cases," he proceeded, "the court considers the trust of the term as annexed to the inheritance, yet the legal estate of the term is always separate from it, and must could not declare that the term had determined by payment, Lord Northington, Wright v. Pearson, 1 Ed. 124. (a) The doctrine of Attendant Terms was familiar in the reign of Charles I.; see 1 Rep. Ch. 20, &c.; for an exposition of the modern doctrines, see Story on Equity, ii. 313, et seq. (b) "Such a trust term is not to be made assets in equity, as it would be dangerous to purchasers to make it so, but it is real assets in the hands of the heir," Willoughby v. Willoughby, 1 T. R. 766; 2 Fonbl. 114. Generally it goes with the inheritance; see Baden v. Lord Pembroke, 2 Vern. 58-9; 2 Freem. p. 77 (note), and 207. 209. Extinguishment of Outstanding Satisfied Terms. 515 be so; otherwise it would be merged. And this gives the court an opportunity to make use of such terms as a guard and protection to an equitable owner of the inheritance against mesne conveyances, which would carry the fee at common law, or to a person who is both legal and equitable owner of the inheritance, against such mesne incumbrances as he ought not to be affected with in conscience; and here the court often disannexes the trust of the term from the strict legal fee; but still in support of right" (a). Lord K. Wright, in observing on the doctrines of the Court of Chancery, as to attendant terms, said, "in these cases it may in some sense be said, that Equitas sequitur legem; for at law, if a term and the inheritance come in one hand, the term is merged, and the estate goes to the heir; so in equity, it is in the nature of a merger, for the trust of the term will follow the inheritance" (b). *By means of these outstanding terms, the immediate legal estate, as carrying with it the direct right to the possession, was, [*516] during its continuance, made use of as a shield which covered the purchaser's title from the attacks of all claimants, with notice of whose adverse rights his conscience could not be affected, for between those who have equities only, there is no reason that he who has the legal title also should not assert it. Outstanding terms, therefore, were much in request amongst conveyancers who hardly deemed a purchaser or mortgagee secure, unless his title were fortified by a chattel interest of respectable antiquity (c). It is the secrecy with which charges and incumbrances may be made, according to the existing law, that gave to these outstanding terms such extreme value; but the efficiency of this expedient, and its subserviency to the ends of justice, have been of late years, to say the least, the subject of serious doubt by all those who have looked beyond the mere practice of the law. "No considerate mind," said Lord Langdale, before the Real Property Commissioners, "can be seriously and permanently of opinion that the legal fictions called 'outstanding terms' afford an adequate remedy to the danger of prior unknown claims existing on any property. It often happens that such terms do not exist; sometimes when they seem to exist, it is very doubtful whether they can be established against the other legal fictions of merger or presumed surrender; when existing and established, the transfer of them is frequently attended with enormous difficulties and expense; and when practically applied to use, they are generally found to protect one innocent party at the expense and to the prejudice of another." This opinion of Lord Langdale was confirmed by the evidence of some eminent practical conveyancers (d). The Real Property Commissioners were of (a) Lord Hardwicke, Willoughby v. Willoughby, 1 T. R. 763; S. C., Belt's Supp. to Ves. Sen. 465. The subject is again enlarged upon by the same distinguished judge in Wortley v. Birkhead, 2 Ves. Sen. 574. (b) Best v. Stamford, 2 Freem. 289; et v. Tiffin v. Tiffin, 2 Ch. Ca. 49 and 55; 1 Vern. 1. (c) See Hayes, Introd. i. 106-8. (d) See the Appendix to the Second Report of the Real Property Commissioners, VOL. I.-32 p. 313, &c. Mr. Neale, Real Property Acts of 1845, in his introduction to the Act 8 & 9 Vict. c. 112, p. 2 to p.55, has given a concise summary of the objections to the system which that Act aims at putting an end to. The subject is more largely discussed, and the authorities collected, in the Law Review, No. V. p. 183. 196. 395, 396, where the various modern publications on the subject are referred to. I would also refer the reader to Mr. Hayes' observations, p. 108, 9, in his Introduction to Conveyancing. 516 Reasons for introducing Rules of Construction. opinion that protection could not be efficiently obtained even by giving notice of the purchase to the person having the legal estate (a). On the strength of these opinions, the Act above referred to was passed, which has produced, as has been noticed in a former page (b), much discussion in the profession; and questions as to the efficiency of the Act have been raised, which if not removed by judicial decision, must be the subject of legislative enactment. It is not impossible that the passing [*517] of this Act may lead to the establishment of a General Registry, or of something equivalent, that shall afford a real and substantial protection to honest purchasers, which it cannot be said has ever existed since the notoriety of livery and seisin was got rid of in the manner which has before been explained. The General Duties of Trustees remain the same in principle as under the old system of uses (c): this is too large a field to enter upon in this volume. For a comprehensive view of this subject I would refer the student to Mr. Hill's elaborate Treatise on the law relating to Trustees, and the 12th to the 17th chapters of Mr. Lewin's work so often already referred to. Introduction to the next Chapter. In the instance of trust estates corresponding with the ancient permanent uses, questions of construction of the instruments by which they are created and assigned or conveyed, must, of course, continually arise equally as in conveyances of legal interests. These questions must, of course, come before the Court of Chancery exclusively. In questions of construction, generally speaking, the Court of Chancery follows the law; and in such instances a case is frequently sent to a Court of Law, with the question so stated as if it had arisen upon an instrument operating at law, so as to obtain the opinion of a Court of Law as to the construction of the words in the instrument (d); and where the question cannot be so moulded, the assistance of some of the common law judges is occasionally called in. But in the generality of these cases the court decides for itself; and even when a question as to the construction of an instrument operating at law, arises in a suit in the Court of Chancery, which, in the mind of the judge, is wholly free from doubt, it is fully competent to the judge, rather perhaps his duty, himself to decide [*518] it (e); indeed, in many cases of doubtful *construction of legal instruments the court is compelled itself to come to a decision, at (a) Second Report of R. P. Com. p. 13, 14. (b) Supra, p. 293. Some able articles on this subject have appeared in the Jurist, see int. al. x. p. 101. (c) V. supra, p. 445. 448, 9. (d) A modern instance may be seen in Houston v. Hughes, 6 Barn. & Cr. 420. (e) See the judgment, Blundell v. Glad stone, before the Vice-Chancellor of England, 11 Simons, 489; this cause was reheard by the Lord Chancellor, assisted by Mr. J. Patteson and Mr. J. Maule, and the decision of the V. C. was affirmed; and see Muddle v. Fry, 6 Mad. 270; and Rop. on Leg. ii. 703; and the Dict. of Lord Eldon, Bromley v. Holland, 7 Ves. 17. Lord C. Ellesmere considered that the Court of Chancery was much better able to judge of the effect of deeds and written evidences, than a jury of ploughmen, Cary, p. 32. In The Countess of Suffolk v. Sir R. Grenville, in which Lord K. Coventry was assisted by Hatton and Whitlock, justices, it is said, "The construction of deeds is the proper office of the Court of Chancery," Nelson's Rules for the Construction of Deeds and Wills. 518 least for some purposes, as for the granting or refusing of an injunction. In questions arising upon legacies, the court must take upon itself the construction; and in these cases all or most of the rules of construction, applicable to written instruments, come into operation. Hence, a knowledge of the rules of construction is equally essential to the practitioner in the Court of Chancery, as to the practitioner in the Common Law Courts. For these reasons, and because the account which has been given in a preceding Book of the modes of conveyance would not be complete without some reference to the rules of construction of written instruments, and with a view to leave for the Third Part of this work only the peculiar jurisdiction of the Court of Chancery as a court of Equity, I propose to devote the following Chapter to that subject, when it will be seen, on reference to the authorities cited, that the judges of the Court of Chancery have contributed, in no small degree, to settle the general law on this subject; it is, perhaps, to the liberal rules of construction originally adopted from the Court of Chancery, drawn no doubt from the Roman jurisprudence, that those rules have deserved the eulogy of Lord Mansfield, himself well acquainted with the Roman law, which will presently be adverted to. THE GENERAL RULES FOR THE CONSTRUCTION OF DEEDS AND WILLS, WITH INCIDENTAL NOTICES OF THE RULES APPLICABLE TO OTHER INSTRUMENTS IN WRITING. Preliminary Observations. SECTION I.-General Rules of Law for the Construction and Interpretation of Deeds and Wills. SECTION II. Of the application of Extrinsic Evidence to the Interpretation of Deeds and Wills. Preliminary Observations. Office of a Deed-Difference between Deeds and Wills-The Rules of Construction generally the same in Equity as at Law. THE various kinds of deeds which operate at common law (a), and under the Statute of Uses (b), and the power of bequeathing personal estate by will, have been noticed in the preceding parts of this work. The statutes by which the power of devising real estate was introduced and subsequently regulated, and the re-introduction of title to property by way of trust, have also been the subject of consideration. We are C. R. p. 17. But at that time the amalgamation of the liberal rules of construction which were applied in the Court of Chancery, and of the stricter rules of Courts of Common Law, had not perhaps been com- (a) Supra, p. 161, et seq. |